Madras High Court
Sri.Dinesh Kumar ... Revision vs Sri. G.Ganesan on 14 December, 2021
Crl.R.C.No.228 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 04.03.2022
Pronounced on : 10.03.2022
CORAM
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.R.C.No.228 of 2022
and Crl.M.P.No.2345 of 2022
Sri.Dinesh Kumar ... Revision Petitioner
Vs.
Sri. G.Ganesan ... Respondent
Criminal Revision Case filed under Section 397 r/w 401 of of the Code of
Criminal Procedure, against the order dated 14.12.2021 made in CMP
No.19618 of 2021 in Criminal Appeal No.103 of 2020 on the file of the
learned XVIII Additional Judge, City Civil Court, Chennai.
For Revision Petitioner : Mr.B.R.Sankara Lingam
For Respondent : Mr.G.Mahendran
ORDER
The present Criminal Revision Case has been filed to call for the
records and set aside the order dated 14.12.2021 in Crl.M.P.No.19618 of
2021 in Crl.A.No.103 of 2020, on the file of the learned XVIII Additional
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Crl.R.C.No.228 of 2022
Sessions Judge, City Civil Court, Chennai, by allowing this Criminal
Revision Case.
2. The petitioner herein is the accused in CC No.3997 of 2017,
wherein the respondent filed a private complaint as against this petitioner
alleging that the petitioner is liable to be convicted under Section 138 of
Negotiable Instruments Act, 1881. After elaborate trial, by judgment
dated 25.02.2020, the learned Magistrate found the petitioner guilty and
convicted the petitioner to undergo simple imprisonment for one year and
also directed to pay compensation of Rs.12 Lakhs to the respondent.
3. Therefore, petitioner preferred the petition mentioned appeal,
wherein he challenged the judgment dated 25.02.2020. During the time
when the appeal is pending before the learned XVIII Additional Sessions
Judge, City Civil Court, Chennai, the petitioner filed an petition in
Crl.M.P.No.19618 of 2021 under Section 391 of Cr.P.C wherein he
prayed to take additional evidence by cross examining the respondent
side evidence.
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Crl.R.C.No.228 of 2022
4. Resisting the said application, the respondent herein by filing a
counter affidavit state that before the trial court after examining him as
PW1 on the side of the petitioner, a lengthy cross examination was
conducted and while at the time the petitioner was put under Section 313
Cr.P.C examination, nothing has been stated, as there was any document
available to show his innocence. When at the time the case was posted
for defence side evidence, the petitioner filed an application under Section
91 of Cr.P.C., through which he called for the statement of bank accounts
maintained by the respondent with the State Bank of India, Royapuram
Branch and Bank of India, Washermenpet Branch, as well as the Lease
Agreement entered with the respondent-tenant, title deed of the
respondent property, Memorandum of Deposit of Title Deed executed by
the respondent in favour of M/s.Dhanlakshmi Srinivasan Chit Funds (P)
Limited and Receipt Deed in favour of the respondent. After receipt of
the said application, the respondent has also voluntarily come forward
and furnished all the said documents before the trial Court as called for
by the petitioner herein.
5. Even after the receipt of the said documents, the petitioner filed
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Crl.R.C.No.228 of 2022
a reopen and recall petition under Section 311 Cr.P.C. seeking permission
for further cross examination of the respondent. The said application has
also been allowed. Later through the respondent, the above referred six
documents were marked by the petitioner as Ex.D1 to Ex.D6. Only
thereafter, after a full-fledged trial, the learned Magistrate has
pronounced the judgment, wherein the petitioner was convicted as above.
6. Heard Mr.B.R.Sankara Lingam, learned counsel appearing on
behalf of the petitioner and Mr.G.Mahendran, learned counsel appearing
on behalf of the respondent and perused the materials available on record.
7. Before the lower appellate Court, the petitioner being the
accused filed a petition under Section 391 of Cr.P.C., for adducing
additional evidence by way of cross examining the respondent. No doubt,
under Section 391 Cr.P.C., the appellate Court may either take evidence
itself or direct it to be taken by the trial Court.
8. The primary object of Section 391 of Cr.P.C., is the prevention
of guilty man's escape through some careless or ignorant proceedings
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Crl.R.C.No.228 of 2022
before a Court or vindication of an innocent person wrongfully accused.
Where the Court through some carelessness or ignorance has omitted to
record the circumstances essential to elucidation of truth, the exercise of
powers under Section 391, is desirable. In otherwise, Section 391 of
Cr.P.C. does not provide that the additional evidence can be taken only if
it favours the defence and not if it favours the prosecution.
9. Here it is a case, in the petition filed by the petitioner, he has not
stated the details of additional evidence to be taken through the
respondent. In this occasion, on going through the averments found in
the counter affidavit, the respondent has clearly narrated the entire things
and the same would reveal the fact that before the trial Court itself the
petitioner utilised every opportunity for the purpose of proving his case.
Even after utilising all the opportunities, without mentioning the details of
the documents, which are all necessary to show his innocence, the
petitioner herein filed this application, which shows that the petitioner has
attempted to prolong the proceedings. Additional evidence may be
necessary not because it would be impossible to pronounce the judgment,
but, there will be failure of justice, without it.
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Crl.R.C.No.228 of 2022
10. Here it is a case, that there was an inadvertence in producing
the document which are necessary for deciding the issue. The lower
appellate Court has also observed that the defence raised by the accused
has been extensively cross examined before the trial Court and
opportunities were also given for cross examination. In the said
circumstances, the reasons stated by the petitioner for allowing this
revision is not at all having any merits and accordingly, this Criminal
Revision Case, is dismissed. Consequently, the connected Criminal
Miscellaneous Petition, is closed.
10.03.2022
Speaking/Non-speaking order
Index: Yes / No
ars
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Crl.R.C.No.228 of 2022
R.PONGIAPPAN, J.
ars
Pre-delivery order in
Crl.R.C.No.228 of 2022
10.03.2022
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